Counsel for Wyoming State Bar: 'Testilying' corrosive to public trust in police - Casper, WY Oil City News
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Counsel for Wyoming State Bar: ‘Testilying’ corrosive to public trust in police

(File photo, Trevor T. Trujillo; Oil City)

CASPER, Wyo. — “Testilying” is a term that refers to law enforcement officers giving false testimony in court.

That is precisely what happened during a preliminary hearing in a case against hemp farmers accused of cultivating marijuana, Attorney Anna Olsen argues in a June 7 brief filed in the Wyoming Supreme Court.

Olsen, acting as counsel for the Wyoming State Bar, filed the brief in opposition to a May 21 petition filed by Wyoming Deputy Attorney General Jenny Craig which sought to redact Wyoming Department of Criminal Invesigation Special Agent John Briggs’ name from a Wyoming State Bar Board of Professional Responsibility report and recommendation of public censure

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That report had accompanied the Supreme Court’s May 19 order to publicly censure Cheyenne-based attorney and former Laramie County Assistant District Attorney David E. Singleton for failing to correct the alleged false testimony Briggs gave in the case.

The Supreme Court has issued an order dismissing the AG’s petition, ruling that “the Attorney General, as a non-party, does not have standing or party status to challenge the ‘Order of Public Censure’ at issue.”

“Testilying” may corrode public trust in police

While the Wyoming Supreme Court considers the case closed, Olsen’s brief sheds further light on the nature of the alleged false testimony Briggs provided and raises concerns about the corrosive effect lying by law enforcement officers may have on public trust in police.

“America is quickly losing confidence in its police,” Olsen wrote in the brief. “Indeed, according to an August 2020 Gallup poll, public perception of law enforcement is at its lowest point since the organization began tracking the issue twenty-seven years ago in 1994.”

“In addition to the recent, and horrific, stories of police brutality, another reason for the decline in police confidence stems from the frequency with which law enforcement testify falsely in court, also known as ‘testilying.’”

Olsen argues that officers sometimes give “less than candid testimony in order to further the officer’s own personal agenda.”

“This is precisely what occurred here,” she wrote. “In this case, there is clear and convincing evidence that Special Agent Jon Briggs (‘Agent Briggs’) testified falsely when he stated under oath that he had never read a July 24, 2020 email from attorney Tom Jubin.”

Summary of Briggs’ alleged false testimony

Olsen is referring to an email Jubin, who was acting as a defense attorney in the case, sent to Briggs in regard to testimony he had provided during the first half of a preliminary hearing in the case.

For context, the following is a summary of the nature of the alleged false testimony explained in the Board of Professional Responsibility’s report and recommendation of the public censure accompanying the Supreme Court’s order issuing the public censure of Singleton. (Readers familiar with the case my wish to skip below to where the article resumes discussion of Olsen’s brief).

When Briggs and other Wyoming DCI agents executed a search warrant of the Laramie County hemp farm property in Nov. 2019, agents were shown test results of the farm’s hemp crop which showed that the THC content was less than 0.3% THC, which is the legal limit in Wyoming. The farm owners had hired Botanacor, an independent agency, to test samples of the hemp crop and obtain these results.

Those test results were also texted to a Special Agent Moon.

In Feb. 2020, the four defendants were charged with various felony charges after the Wyoming DCI obtained test results of plant material they had seized during the raid of the property. A report detailing those lab results showed that all but one sample had tested above 0.3% THC.

Briggs testified during a preliminary hearing on July 9, 2020 before First District Court Judge Antoinette Williams, according to the report and recommendation of public censure.

When Singleton asked about the test results special agents had been shown during the raid of the farm, Briggs testified that he had been shown these results on a cell phone. During cross-examination by defense attorney Tom Jubin, Briggs testified that the results he had been shown “may have actually been over 0.3% as well.”

Jubin then showed Briggs exhibits of the test results that had been shown to him and Moon which showed the THC content was less than 0.3%. Briggs testified that: “I don’t recall if these were the exact ones that were presented to me at that time.”

The preliminary hearing didn’t conclude on July 9, 2020 and was scheduled to resume on Aug. 6.

On July 24, Jubin sent an email to Briggs pointing to inaccuracies in his testimony during the preliminary hearing. In the email, he asked Briggs to correct his sworn testimony.

After receiving this email, Briggs texted Singleton: “Dude, Jubin is going hard in the paint. He is sending me emails, trying to tell me my testimony is wrong.”

Singleton responded to Briggs’ text message as follows: “He sent me an email yesterday and said the same thing. Not trying to be antagonistic just trying to ‘educate’ me. That about sum it up?”

Briggs then responded: “Oh ya. ‘I’m giving you the chance to correct your testimony.’ Is there any recourse against him for such activity? He is actually insane.”

Briggs later sent Singleton the email he had received from Jubin.

When the preliminary hearing resumed, Briggs was again called to testify. Jubin attempted to ask about the email he had sent in regard to the inaccuracies in Briggs’ testimony during the July 9, 2020 hearing.

But Briggs testified that he had not read the email: “To be honest, sir, I didn’t read your e-mail. I forwarded it to counsel.”

Wyoming State Bar Board of Professional Responsibility note in the report that Jubin had no way of knowing this testimony that Briggs hadn’t read the email was false, but that Singleton knew it was false and failed to correct it on the record.

On redirect, Singleton asked Briggs if he saw the test results on the day of the raid of the hemp farm. Briggs testified: “I don’t recall paying attention to them, no.”

Singleton then asked whether it was possible Moon showed Briggs the results but that he didn’t recall. Briggs testified: “Yes. I was trying to figure out the scene and interviews and things of that nature.”

At that point in the report, the Wyoming State Bar’s Board of Professional Responsibility state: “Thus, rather than correct the inaccurate testimony he offered at the first hearing regarding the test results, Agent Briggs continued the prevarication.”

At the conclusion of the hearing, the judge ruled that there was not sufficient evidence of the defendants’ intent to possess, distribute or conspire regarding marijuana. Singleton dismissed the charges following the judge’s ruling.

Olsen shows further evidence that Briggs’ provided false testimony

In her brief, Olsen shows further evidence that Briggs had indeed read Jubin’s email, though he testified that he had not. She shares the email Jubin sent to Briggs on July 24, 2020 following the July 9 preliminary hearing in the case.

Olsen highlights two phrases in the email.

“You testified that you could not remember where you got this information – that the CBD is contained in the stalks,” Jubin wrote in the email. Further down in the email he wrote: “Attached is the statement of Ty Odle. He is an expert in the CBD extraction industry.” (Bold indicates emphasis Olsen added).

Two hours after Jubin sent the email to Briggs, Briggs and Singleton exchanged text messages, according to Olsen’s brief. That exchange reads as follows, with Olsen highlighting phrases which suggest Briggs had indeed read Jubin’s email:

Briggs: Dude, Jubin is going hard in the paint. He is sending me emails, trying to tell me how my testimony is wrong.

Singleton: He sent me an email yesterday and said the same thing. Not trying to be antagonistic just trying to ‘educate’ me. That about sum it
up?!

Briggs: Oh ya. ‘I’m giving you the chance to correct your testimony’. Is
there any recourse against him for such activity. [sic] He is actually insane. I’m not turning into an expert over weed in a few weeks. Also if he wants experts to testify about extraction that sounds like trial.

Singleton: It is trial. You’re correct. He is crazy. We can let the court know
that he is trying to persuade witness testimony. That won’t go over
well with the judge. Also we just got the reset. It’s August 6, at 200.

Briggs: Please do. . . . I am not fond of Jubins [sic] attempt to discredit
under the guise of ‘educating’ me. By their own account the
stalks are very valuable
, so I know what they knew, a judge
reviewed and signed it. . . . .

Singleton: Couldn’t agree more with everything you just said. He’s just
spending his clients $$ at this point

Briggs: Love that the judge already told him ‘there is more than enough
probable cause’. But yet he continues to insult her, over ‘violating
his clients constitutional rights’. He is really swinging for anything.

Singleton: He is. And honestly at this point just an annoyance

Olsen highlights the false nature of the testimony Briggs allegedly gave when the hearing resumed

Olsen continues in here brief to highlight precisely how she sees the testimony Briggs’ gave as false. When the preliminary hearing resumed on Aug. 6, Briggs was called to the stand and asked about the email Jubin had sent.

Olsen shares that portion of the testimony, highlighting places where Briggs’ denied having read the email:

Jubin: And then you received this letter from me that Mr. Singleton alluded to concerning the accuracy of your statements, right?

Briggs:I did receive an email from you.

Jubin: And it had . . . it expressed concerns about the accuracy of that
testimony?

Briggs: To be honest, sir, I didn’t read your e-mail. I forwarded it to counsel.

Jubin: You didn’t read the email?

Briggs: No, sir.

Jubin: Did you read the attachment?

Briggs:I did not, sir.

Jubin: Did you look at any of the links that I suggested so that you could provide accurate information?

Briggs:I forwarded the email to counsel and the attorney general’s office, and I did not review the subject.

Jubin: So if I handed you a copy of the letter, you wouldn’t even recognize it?

Briggs: I believe, when the email came into me, it was 7:00 at night. No, sir, I wouldn’t.

What happens next?

Olsen notes in her brief that the Wyoming DCI initiated an internal investigation into Briggs’ alleged false testimony on Jan. 25, 2020. During that investigation, Briggs’ supervisor, Agent Tina Trimble, interviewed him in regard to the email.

Briggs said in that interview he remembered ““sliding through” the email. He said that he had only “looked at the email briefly.” During the DCI’s investigation, Singleton was also interviewed and said that he didn’t think Briggs had lied.

“On March 22, 2021, two months after Mr. Singleton told DCI that he did not think that Agent Briggs had ‘lied,’ he signed an Affidavit and stated, under oath, that when Agent Briggs testified that he had not read Mr. Jubin’s July 24, 2020 email, that testimony was false, Mr. Singleton knew it was false, and he failed to correct it on the record,” Olsen wrote in her brief.

While the AG’s office petitioned the Supreme Court to have Briggs’ name redacted, the Wyoming Peace Officer Training and Standards (POST) Commission, which is housed under the AG’s office, said during the last week of May that they were investigating the matter of Briggs’ alleged false testimony.

POST rules require they investigate any formal complaints filed with them in regard to alleged law enforcement officer misconduct.

“The Attorney General may obtain the relief it seeks via a Wyoming Peace Officer Standards and Training (“POST”) Commission complaint,” Olsen argued in her response in opposition to the AG’s petition which sought to have Briggs’ name redacted. “The POST Commission may review the underlying file and determine whether Agent Briggs provided false testimony at the second preliminary hearing.”

“If the POST Commission vindicates Agent Briggs and determines that he did not provide false testimony, that will rehabilitate his credibility within the State.”

Olsen further questions why Deputy AG Craig “did not initiate a POST review after she received communications from three lawyers…calling to her attention Agent Briggs’ false testimony.”

Olsen’s summary of the “clear and convincing evidence” Briggs’ testified falsely

In her brief arguing that the Supreme Court reject the AG’s petition that asks for Briggs’ name to be redacted, Olsen summarizes why she thinks it is clear that the testimony was false. That section of the brief reads as follows:

In this case, the record is clear that Agent Briggs provided false testimony in the circuit court when he testified that he had not read Mr. Jubin’s July 24, 2020 email. First, in the email sent by Mr. Jubin, he told Agent Briggs that he was wrong in his opinion that CBD is contained in the stalks of the plants. See DCI Report, Supplement 7. Then, in the text message exchange between Agent Briggs and Mr. Singleton, Agent Briggs stated, “He is sending me emails, trying to tell me how my testimony is wrong.” Id., Supplement 1 at p. 3. This begs the question, how would Agent Briggs know if Mr. Jubin thought his testimony was wrong unless he read the email?

It is also notable that Mr. Jubin’s email discusses the plant’s stalks at length and then in the text messages, Agent Briggs states, “by their own account the stalks are very valuable.” Id. How would Agent Briggs know that the email discussed the plant stalks unless he read the email?

Then embedded 262 words in Mr. Jubin’s email, Mr. Jubin discusses an expert in the field of “CBD extraction.” See DCI Report, Supplement 7 at p. 2. Not surprisingly, in the text message exchange, Agent Briggs states “Also if he wants experts to testify about extraction that sounds like trial.” See DCI Report, Supplement 1 at p. 3. It is not a coincidence that Mr. Jubin used the word “extraction” and then Agent Briggs used the
exact same word in his messages to Mr. Singleton.

Second, in his January 8, 2021 letter to Mr. Gifford, Mr. Singleton stated that Agent Briggs’ testimony was false and his failure to correct the testimony breached his duty of candor to the tribunal. See Exhibit 3 at ¶5. Furthermore, and more importantly, Mr. Singleton signed an Affidavit, under oath, which described Agent Briggs’ testimony as
false. Id. at ¶8. At the time that Mr. Singleton signed this Affidavit, he was represented by Counsel and had no reason to tell Mr. Gifford that Agent Briggs had misrepresented the facts unless it was true.

Third, Agent Briggs’ own interview with DCI further demonstrates his lack of candor. When Mr. Jubin asked Agent Briggs if he had read the email, Agent Briggs answered unequivocally “No. Sir.” See Exhibit 2 at pp. 9-10. That answer is false. This is because Agent Briggs told DCI something different, i.e., that he remembered “sliding through” and “skimming” the email. Why didn’t Agent Briggs tell Mr. Jubin the truth and say that he had at least “skimmed” the email instead of answering with a resounding “no?”

The answer is obvious. Agent Briggs wanted to cut off any cross-examination on the subject by saying that he had not read the email. Agent Briggs simply did not want to be questioned on his inaccurate testimony that one of the test results that were shown to him and Agent Moon by Mr. Dykes may have been higher than .3% THC. If he agreed that he was wrong about the tests, that would further discredit him and hinder the chances of Judge Williams binding the charges over to district court. It was easier for Agent Briggs to lie because lying cut off the questions and allowed him to maintain his credibility. Agent Briggs was no doubt emboldened in his subterfuge by his knowledge that Mr. Jubin was not privy to his July 24 text exchange with Mr. Singleton.

Agent Briggs also had a motive to lie because he detested Mr. Jubin. Agent Briggs told DCI agents that he believed Mr. Jubin’s July 24, 2020 email to be “disgusting” and “grossly inappropriate.” 6 See Petition, Exhibit D at Briggs’ Interview. Agent Briggs also felt “victimized” by Mr. Jubin’s email and he did not want to “validate” that behavior. Id. Unfortunately, the way Agent Briggs responded to his feelings of being victimized was to lie.